"I have come to believe over and over again that what is most important to me must be spoken, made verbal and shared, even at the risk of having it bruised or misunderstood. That the speaking profits me, beyond any other effect. ... And of course I am afraid, because the transformation of silence into language and action is an act of self-revelation, and that always seems fraught with danger."1
In this, the second issue of the National Journal of Sexual Orientation Law, teachers and students discuss the increasing visibility and continuing invisibility of lesbian and gay people and issues in law schools. Francisco Valdez presents data on the increasing substantive coverage of lesbian and gay issues in law school courses. Between 1990, when Gene Schultz concluded his study,2 and 1994, when Francisco Valdes considered the question, the number of law schools offering courses or seminars primarily focused on lesbian and gay issues increased dramatically: from 13 schools offering 14 primary courses to 44 schools offering 48 primary courses.3 The Valdes study is important both as a progress report and for use in pushing for further progress, giving students and faculty data on how coverage of our issues is becoming part of the curriculum in American law schools.
Steven Hartwell's study shows a correlation between the presence of out teachers on a faculty and lesbian and gay courses, student groups, anti-discrimination policies, and promotional literature welcoming to lesbian and gay applicants. These findings too can be used in pushing for change, highlighting the need for out faculty members so that straight as well as lesbian and gay students have the opportunity to learn from a diverse faculty in an environment likely to be more lesbian and gay tolerant or friendly.
The final two articles are first person accounts of students who were gay and out in the Harvard Law School class of 1995. Last fall, I taught a seminar on Critical Race and Lesbian-Gay Legal Theory at Harvard. For our last session, I wanted the seminar to read first person accounts of law school experience by a diverse set of students, but was unable to find any essays by lesbian and gay students. At the start of the semester, I therefore suggested to students that they consider writing such pieces as one of their seminar papers. A number of students did so, and we were able to read their work for our last session. Kevin Reuther and Brad Sears were two of the students in that (wonderful) seminar. Their essays describe being out and gay at a large elite law school without a single "out" person on the regular faculty and where, during the first year, few teachers cover lesbian and gay issues at all or present lesbian and gay people other than as criminal defendants. Reuther and Sears describe the pain and necessity of making points and raising issues from a lesbian and gay perspective time after time in class after class. Although neither Reuther nor Sears stress this point, one cannot read their accounts without being impressed by their courage and dignity in navigating so hostile a region. The system rewards those who stay in the closet, and both of these men deliberately faced overt and covert hostility or indifference together with the loss of benefits that could have been theirs had they remained silent.
In reading these autobiographical essays, I was struck by how similar are the experiences of students and faculty. Standing at the front of the room does not eliminate either the necessity or pain of being "out" in an environment in which "reasonable" people agree that "reasonable" people can disagree about whether you are entitled to basic human dignity and respect, whether your speech should be suppressed, whether your most intimate relationships should be criminalized.
Being a member of the faculty does not eliminate the discomfort and hurt one feels when discussing whether government can legitimately and reasonably discriminate against you. Sometimes this happens with colleagues who, even if supportive of lesbian and gay rights, may regard the discussion as one delectable course in the wonderful "intellectual feast"
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that is the law. Straight participants engage in such discussions without any apparent appreciation of how it feels to have your right to be an equal citizen regarded as an intellectual delicacy and a matter of debate on which reasonable people might differ. Even many lesbian and gay-friendly colleagues are likely to react differently to overt racism or sexism and homophobia, regarding racist and sexist beliefs as immoral but homophobia as legitimately based on moral convictions. Just writing this makes me feel tense and inarticulate.
Similar feelings have overwhelmed me in interactions with students, Last fall, I sat as a moot court judge while a student argued that lesbian sexuality was "essentially criminal," thus justifying the firing of an out lesbian on a police force in the state of Aimes. This argument was made in all earnestness, though the Aimes sodomy statute covered (incredibly) not just all heterosexual and homosexual anal and oral sex but also all heterosexual and homosexual contact between the genitals of one person and the fingers of another person (so-called "digital sex" in Aimes, if I remember correctly). Thus, in Aimes, all but the most inhibited of heterosexual and same-sex couples violated the criminal code when sexually intimate, but lesbian sexuality - not sexuality in general - was "essentially criminal." The student making this argument had, of course, no idea what lesbians "do" or (apparently) of what most heterosexuals "do." In such a situation, one is forced either by silence to agree with the speaker that lesbian sexuality is essentially criminal or by speaking reveal intimate details which properly should not be mentioned in a moot courtroom. I compromised. I remember, for example, mentioning that tribadism would be a legal form of lesbian in sexuality in Aimes without defining it. I wonder if the student ever figured out what I was talking about.
The student arguing that lesbian sexuality was "essentially criminal" in Aimes was, of course, right in reality. Sodomy statutes, no matter how broad, are understood as prohibiting all same-sex erotic contact and no consensual adult heterosexual erotic contact.4 Such statutes -- regardless of wording or actual coverage -- criminalize only and all our sexuality, no matter how loving.
Last week, I judged a moot court on the Colorado case.5 Counsel for the state of Colorado justified the statute as necessary to prevent the devaluation of anti-discrimination laws (though in Colorado, anti-discrimination laws covered tobacco smokers); to avoid burdening religious exercise, and to promote family values, and to save money by avoiding enforcement actions. I had to sit there and accept these rationales as superficially plausible, statements that could be made by a reasonable person with a straight6 face. This is a shell game in which we lose. Bias is transformed into neutral reasons, and no one says out loud that the emperor has no clothes. Imagine how law schools would treat similar arguments that state discrimination against women -- for example, a statute prohibiting mothers from working in the wage-labor market -- is justified by the need to protect the "traditional" family or to prevent the state from burdening the free exercise of those whose religion teaches that mothers should not work outside the home. Such arguments would not be made, and if made, would not be seen as reasonable, because they simply restate bias in terms of tradition and religion, both of which have been important participants in the creation of patriarchy and many other evils. Yet such arguments seem something other than the restatement of bias when the question is the right of sexual minorities to the pursuit of happiness. Becoming visible means being forced into categories that do not fit, that are premised on the denial of our reality. This is true generally in American culture and particularly so in legal argument. In the culture, being out means being defined in terms of what one does in bed and as "essentially" sexual: a hyper sexual being whose core identity is sex, sex, sex. In law, arguing for lesbian and gay rights often requires accepting absurd, crazy-making categories and assumptions: that your sexuality is not chosen or at least would be extraordinarily difficult to change (in equal protection arguments for suspect-class protection of lesbian and gay people7); that homophobia is simply an aspect of sexism (in equal protection arguments for lesbian and gay discrimination as sex discrimination); that though your conduct (loving!)
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can be criminalized, your speech cannot (in free speech).8
For many of us, our sexual orientation is something courageously chosen.9 We want to make arguments that recognize sexual choice as legitimate. This should be possible. We live in a liberal society in which "choice" is a trump card justifying all sorts of very problematic heterosexual relationships (she chose to sign the surrogacy contract or to go to his apartment on their first date or to sign the prenuptual agreement waving all economic protection at divorce), but when we choose good relationships, choice undermines their legitimacy.
Viewing lesbian and gay discrimination as only a manifestation of sexism (and therefore sex discrimination) suggests that the agenda for change must focus on the needs of (straight) women, thus shifting attention back to heterosexuals and their relationships and away from us. Further, although it is difficult to identify how homophobia is distinct from sexism in a culture in which the two are so intertwined, on a theoretical level we are likely to miss key aspects of heterosexual domination if we look at our oppression only through the lens of gender.10 Such a focus will surely miss the ways heterosexual women contribute to our second-class status by distancing themselves from "lesbians" and maximizing their own heterosexual privilege in countless other ways, while viewing us from a vantage so privileged they imagine themselves perfectly innocent.
Accepting the speech-conduct distinction requires conceding that our speech and conduct are separable aspects of our experience and being.11 At most, this line of argument can justify only talk, talk, talk, as though being able to chat (about state-enforced celibacy?) were all justice requires since good, loving relationships can reasonably and legitimately be criminalized.
Perhaps this is the crux of the difficulty in being out in our society and the law: neither the culture nor the legal system can perceive the ways in which same-sex relationships can be more intimate and fulfilling than heterosexual relationships, and not merely on an erotic level, though certainly there too. Yet, perhaps especially for women (I do not feel competent to speak for men), a relationship with another woman can provide a far richer and more supportive intimacy than that possible with most men. This aspect of our lives is reduced, in culture and in law, to sexual preference, as though the only advantages of a same-sex relationship were genital. Current constitutional categories and arguments do not recognize our reality as relevant.12 Yet until the goodness and worth of our relationships can be perceived, we will continue as second-class citizens.
I have mentioned only a few of the ways in which participation in legal culture often leaves one feeling that success would be an oxymoron, that legal recognition of lesbian and gay rights is inconsistent with the basic terms of legal discourse so that being out leaves one operating under constraints that feel (almost) as confining as the closet.
Yet visibility is better than the alternative. Each of the pieces in this symposium illustrates this point. Valdes and Hartwell show that out faculty create an environment in which our issues are more likely to be considered, a prerequisite for change. Reuther and Sears describe the advantages, even on emotional levels, of being out, despite the pain. The legal categories and doctrines that deny our reality and view bias as reasonable can change, but will not do so without criticism. True, the crux of homophobia and heterocentrism is not a failure to appreciate some fine intellectual point. I do not know what the crux is, but I know it functions by defining us entirely in sexual terms and then demonizing our sexuality while idealizing heterosexuality. Yet the value of any human relationship turns on particulars of the relationship, not whether it can be categorized as homosexual or heterosexual. The most important aspect of being out may therefore be the potential to change the perception of our relationships. The point is not to improve the thought processes of straight people, but to create an environment in which we, and our relationships, are visible in all dimensions, not
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just the (demonized) sexual. Only in such an environment will we be allowed to flourish like other human beings.
1. Audre Lorde, Sister Outsider 40,42 (1984).
2. See Gene P. Schultz, The Inclusion of Sexual Orientation in Non-Discrimination Policies: A Survey of American Law Schools, 2 L. & Sexuality 131, 136-137 (1992).
3. Francisco Valdes, Tracking and Assessing the (Non)Inclusion of Courses on Sexuality and/or Sexual Orientation in the American Law School curriculum A: Reports From the Field, __ Jr. Sexual Orientation & Law __ (1995).
4. See Janet E. Halley, Reasoning About Sodomy: Act and Identity in And After Bowers v. Hardwick, 79 Va. L. Rev. 1721 (1993); Janet E. Halley, Misreading Sodomy: A Critique of the Classification of "Homosexuals" in Federal Equal Protection Law in Body Guards at 351 (Julia Epstein & Kristina Straub, eds. 1991); Nan Hunter, Life After Hardwick, 27 Harv. C.R.-C.L. L. Re. 531 (1992).
5. Evans v. Romer, 882 P.2d 1335 (Colo. 1994) (state supreme courts strikes state constitutional provision that provides that neither Colorado nor any part thereof can enact an ordinance or policy to prohibit discrimination against homosexuals, lesbians, or bisexuals).
6. Pun intended.
7. It is, of course, quite possible to make such arguments without insisting on immutability (or something close to it). See Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 Stan. L. Rev. 503 (1994). Such arguments are, however, often made. For example, respondents made the argument described in text in the moot court of the Colorado case I judged last week.
8. I first heard this point made by Bill Rubenstein.
9. Many others feel that their sexual orientation is genetic and not chosen, of course, and for them the argument described in text will be more comfortable.
10. See discussion of relationship in Eve Kosofsky Sedgwick, The Epistemology of the Closet 27-35 (1990).
11. Again, I first heard this point made by Bill Rubenstein.
12. For a discussion of the difficulty women have describing the pleasure and pain of their
lives, see Robin L. West, The Difference in Women's Hedonic Lives: A Phenomenological
Critique of Feminist Legal Theory, 3 Wis. Women's L. J. 81 (1987).
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